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April 25, 2007

SCOTUS death penalty rulings

SCOTUSblog reports here that the Supreme Court today has handed down decisions in Smith v. Texas and Abdul-Kabir/Brewer v. Quarterman, both death penalty cases. Here is an early report from Lyle Denniston:

In one of two rulings Wednesday on death penalty procedures in Texas, the Supreme Court ruled that Texas' highest state court wrongly put up a new legal barrier to a death row inmate's challenge to jury instructions in his sentencing. The 5-4 decision came in the case of Smith v. Texas (05-11304), a case that had been before the Court once before.. Justice Anthony M. Kennedy wrote for the majority.

The Court reversed the Texas Court of Criminal Appeals' ruling that reinstated the death sentence of a Dallas man, LaRoyce Smith; the state court had applied a new harmless error standard under state law. That was a misinterpretation of what federal law required, the Court concluded.

In the consolidated cases of Abdul-Kabir v. Quarterman (05-11284) and Brewer v. Quarterman (05-11287), the Court in another 5-4 decision found that the Fifth Circuit Court wrongly applied prior rulings on instructions to assure that capital juries give full consideration to any factor that might suggest a death sentence should not be imposed.

I now have to jump in the car to drive to Cincinnati for a Sixth Circuit argument, so I won't be able to comment on these ruling until late tonight. I am sure SCOTUSblog and Capital Defense Weekly and others will have comments (including about Justice Kennedy's continued status as a swinger in high-profile cases). Perhaps readers can also use the comments here to fill my short-term absence.

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The AEDPA decision is horrible. The Supreme Court creates a confused body of caselaw and then waves its magic wand and says that the law was clearly established. This Alice-in-Wonderland style of decisionmaking is an affront to all Americans. The five-headed Caesar strikes again. Pure lawlessness.

Posted by: federalist | Apr 25, 2007 11:37:41 AM

I agree that our current death penalty jurisprudence is a mess (as it has been since Furman), but these outcomes were fairly predictable given how this lineup of justices has voted in the past.

Posted by: Marc Shepherd | Apr 25, 2007 12:53:08 PM

I agree that ideologically these outcomes were predictable, but given Graham and Johnson and the Penry I majority becoming dissenters, the outcome of these cases under the AEDPA was less than clear.

Posted by: LonesomeClerk | Apr 25, 2007 12:55:45 PM

One of the really sad things in the AEDPA case, aside from the fact that five Justices on the Supreme Court are willing to subvert a constitutional statute for the benefit of killers, is that the death sentence of a killer named Chambers, who has been on death row for over 30 years, will likely get reversed. When lawless judges like Kennedy, Breyer, Souter, Ginsburg and Stevens let their fancy dictate the outcome in cases, real people (who aren't murderers, by the way, are hurt). I am sure that the five-headed Caesar collectively thinks itself enlightened--but, in reality, they are nothing but lawless.

Personally, I would not care if Texas simply ignored the Supreme Court and executed these guys. Perhaps that sounds lawless or whatever. I don't really care.

Posted by: federalist | Apr 25, 2007 1:19:10 PM

AEDPA's "clearly established federal law [as expounded by the Supreme Court]" provision is the problem, not judicial fiat. If Congress didn't interfere with the normal workings of the judicial system the courts wouldn't have to jump through hoops to enforce the Constitution, and wouldn't be open to stupid criticism of pro-execution hacks.

Also, the decisions aren't REALLY 5-4. Given that Scalia and Thomas will vote against any petitioner who raises Lockett claims, thus belying their supposed adherence to judicial conservatism and stare decisis, the decision is actually 5-2. Brewer at 29, Abdul-Kabir at 52.

The AEDPA decision (Abdul-Kabir) is indeed pretty hard to swallow, logically. If there's one line of cases where there has been absolutely zero consistency on the part of the Court in the past 20 years -- whichever side you agree with -- it's the Penry line of cases. It therefore takes a lot of chutzpah by the Court to say that there was any "clearly established" law during this time that a state court trying to make sense of it all should have followed.

Rothmatisseko, it doesn't do much for your criticism of a legal opinion to criticize the statute you seem to concede the courts must follow. And as there was no claim in Abdul-Kabir of AEDPA's constitutionality, I'm not sure how that issue comes into play.

As for your apparent assertion that a dissent on different grounds somehow doesn't count as a dissent -- well, I think the curiosity of that proposition speaks for itself.

Posted by: bill | Apr 25, 2007 2:17:27 PM

rothmatisseko,

Given that Breyer, Ginsburg, Stevens, and Souter conversely will vote FOR every defendant sentenced to death, no matter the supposed law (by any definition, activist or otherwise), the decision is really 1-2.

Isn't it great how ad hominem can work two ways?

Posted by: | Apr 25, 2007 2:21:33 PM

The unspoken assumption of the Court, it seems, is that the state courts should have resolved doubt in favor of the killer.

Like I said earlier--i would have no problem with Texas simply ignoring the Court's order and executing the guy anyway. This decision is that bad.

Posted by: federalist | Apr 25, 2007 2:22:11 PM

And try this on Rothmat. Think of the mother of one of Chambers' victims or the surviving victim. Chambers' sentence may get overturned as a result of this decision. Now whether you agree or disgree with the death penalty, you have to have some sympathy for these people, and you have to acknowledge that this decision will cause a good bit of heartache for these people--who are entitled, I would think, to some finality here.

When the Supreme Court pulls crap like this, and I think it plain that this is crap, as AEDPA is being flouted here, there are real people who suffer. This endless tinkering with the death penalty has got to stop.

The five judges on the majority are beneath contempt.

Posted by: federalist | Apr 25, 2007 2:38:18 PM

fed,

your outrage seems disproportionate to the offense. so scotus says a state can't kill someone. who cares? the murderer will still do lwop.

and anytime the Supreme Court twists the law in favor of murderers, it is cause for outrage

Posted by: federalist | Apr 25, 2007 2:54:42 PM

I wonder why Scalia, Alito, Thomas and Roberts didn't vote against the death penalty in all these cases. After all, they're Catholic and the Catholic church officially opposes the death penalty. Or does personal faith only influence Supreme Court justices in abortion cases?

Posted by: anonafpd | Apr 25, 2007 3:08:55 PM

I wonder why Scalia, Alito, Thomas and Roberts didn't vote against the death penalty in all these cases. After all, they're Catholic and the Catholic church officially opposes the death penalty. Or does personal faith only influence Supreme Court justices in abortion cases?

Maybe they're, you know, following the law, rather than their personal preferences?

Posted by: Marc Shepherd | Apr 25, 2007 3:35:10 PM

So why the anti-Catholic attacks on them in the abortion case? Which was the point of my comment, BTW.

Posted by: anonafpd | Apr 25, 2007 4:06:10 PM

So why the anti-Catholic attacks on them in the abortion case?

Because a lot of people assume that most judges are result-driven. And a lot of people don't understand the actual legal calculus that goes into a decision. It's a lot easier to say, "He's a good Catholic, and he'll vote the way the Pope wants him to." Or, "Bush appointed him. He'll vote for whatever Bush wants."

Posted by: Marc Shepherd | Apr 25, 2007 4:31:31 PM

The AEDPA aspects of the Quarterman rulings remind me very much of a recent spat in the Second Circuit over what was the state of clearly established New York law (regarding whether a homicide was intentional or "depraved indifference" murder) when a particular habeas petitioner's direct appeal was pending before the NY Courts. (NY's case law on the subject was in considerable flux at the time). The en banc Second Circuit eventually certified the case to the NY Court of Appeals, which eventually sided with the panel dissenter (Judge Raggi), who claimed it was not clear that the defendant was convicted under the wrong state statute based on the evidence.

The case is back before the Second Circuit, which (hopefully) will NOT do what the SCOTUS majority did today and deny habeas relief.

Posted by: gnome | Apr 25, 2007 4:33:09 PM

Catholics are required to oppose abortion. They are not required to oppose the death penalty.

Posted by: Elson | Apr 25, 2007 4:42:05 PM

"Catholics are required to oppose abortion. They are not required to oppose the death penalty."

Well, now, that's convenient, isn't it?

Posted by: gnome | Apr 25, 2007 5:04:24 PM

Whatever. If Texas would just do things right the first time - actually right, not just the bare minimum that they think they might be able to sneak past a reviewing court - no one would be in this situation. Would the number of death sentences decrease tremendously if the trial courts in Texas would quit f'ing around and give the defendant the benefit of the doubt on the instructions? I doubt it - most of these folks would still get death anyway.

The lesson here is simple - do it right the first time or prepare to suffer the inconvenient consequences several years later.

Posted by: Anon | Apr 25, 2007 5:18:51 PM

Oh yeah...so today Kennedy is "lawless." Tomorrow, when he votes with the more conservative justices for something - say, upholding an abortion restriction, refusing to apply the exclusionary rule, or striking down the use of race in a school-assignment program - will he suddenly become more "principled"?

Beauty is in the eye of the beholder...or in this case, the result.

Posted by: Anon | Apr 25, 2007 5:33:05 PM

gnome, I don't know if it's "convenient" or not, but you can be a good Catholic and support the death penalty. You can't be a good Catholic and support abortion. (I'm neither Catholic nor support the death penalty nor oppose abortion.)

Scalia has said that he personally is in favor of the death penalty.

All of this is to say that anonafpd's point made no sense.

Posted by: Elson | Apr 25, 2007 5:46:04 PM

"If Texas would just do things right the first time...."

Easier said than done, when the Supreme Court can't agree with itself from one year to the next what "right" is.

"Rothmatisseko, it doesn't do much for your criticism of a legal opinion to criticize the statute you seem to concede the courts must follow."

bill, I didn't criticize the opinion. I criticized the first comment in this thread.

"And as there was no claim in Abdul-Kabir of AEDPA's constitutionality, I'm not sure how that issue comes into play."

I'd love the argue that AEDPA's a suspension of the writ, but I'd be wrong under the law as it stands. The issue came into play because a commenter said the opinion was lawless.

AEDPA short-circuits the normal workings of the federal judiciary.

"As for your apparent assertion that a dissent on different grounds somehow doesn't count as a dissent -- well, I think the curiosity of that proposition speaks for itself."

Sure it's a dissent. My point is that a petitioner with Lockett claims starts out with a stacked deck. Scalia will always write that dissent, and Thomas will always join it, just as Marshall would always write his.

Easier said than done, when the Supreme Court can't agree with itself from one year to the next what 'right' is."

Kent, everyone knew what the right answer was -- to give a real mitigation instruction. Texas didn't do its job for several years, and pushed the envelope too far, and now these sentences will be overturned. Like Extreme Akim would say, "Now that's justice!"

Easier said than done, when the Supreme Court can't agree with itself from one year to the next what 'right' is."

How about this? When the defendant asks for an instruction indicating that the jury can consider mitigating evidence, just say "yes"! That really just seems like a no-brianer.

Remember, doing the right thing means thr RIGHT thing, not the bare minimum you think might be OKed down the line.

If the trial judge had just said "yes," the guy probably would still have gotten the death penalty and we wouldn't be here.

Posted by: Anon | Apr 25, 2007 9:22:53 PM

Kent:

Just curious, why didn't the Chief address Lockett in dissent? If Lockett applies to the Texas scheme (and every SCOTUS opinion says it does) the results here are required by precedent. The Chief's refusal to address Lockett highlights why I suspect Doug would have given him a "gentleman's C" if he was a student in his death penalty seminar.

Also Kennedy wrote Johnson, one of the two key opinions the Chief relies upon, was Kennedy wrong in Johnson or wrong today, if you support the Chief?

- karl

Posted by: karl | Apr 25, 2007 9:41:36 PM

rothmatisseko: Musladin was not a death case. Just life in prison. Try again.

Posted by: | Apr 25, 2007 11:00:36 PM

"Given that Breyer, Ginsburg, Stevens, and Souter conversely will vote FOR every defendant sentenced to death."

Karl, the Chief's opinion addresses Penry, which applies Lockett to Texas. No need to go back to Lockett itself.

Kennedy was right in Johnson, IMHO. As I noted over at C&C, a narrow opinion could have been written granting relief in Abdul-Kabir. However, Stevens' sweeping claims about how clear this has always been are tripe, and the Chief properly nails him on them.

Anon, the trial judge did give a mitigation instruction in Smith. He asked the defense lawyer to suggest any improvements he might want, and the lawyer could think of none. He got reversed anyway.

Bear in mind that in the mid-70s, when the Texas Legislature passed the statute in question, the Supreme Court had identified too much discretion as the problem. It was not at all obvious that letting the jury consider everything would be upheld. After Penry, the Texas courts had to deal with fitting their existing statute with the new requirements. Judges do not have the authority to ignore statutes and substitute the policies they think are "right." The statute must yield as far as the Constitution requires, but only that far.

One problem with "a narrow opinion", I think, is in the determination of "clearly established" law as determined by the Supreme Court. At the end of the day, the interplay between the Texas statutes and the meandering case law was too messy to distill anything resembling clearly established law, other than the specific holdings of the cases.

Stevens, I think, gives away the game when he mentions the shots across the bow of the Texas courts. Some of the Justices, it seems, have gotten their noses out of joint because lower courts didn't resolve the ambiguity in favor of capital defendants who had a bad childhood.

Posted by: federalist | Apr 26, 2007 1:18:16 PM

Kent:

I think you are right in that the Court could have come out with a much narrower opinion and had 7 votes. My question, which I think you imply both here & at C&C, is that why has the CJ been unable to pull together a broader coalition on the Court not only in these decisions but last week's civil decisions.

Posted by: karl | Apr 26, 2007 9:05:46 PM

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